Hixson v. State, 13-97-288-CR

• Decision Date: 15 July 1999
• Docket Number: No.13-97-349-CR,No.13-97-288-CR,13-97-288-CR,13-97-349-CR
• Parties: (Tex.App.-Corpus Christi 1999) TODD A. HIXSON, Appellant, v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 160

1 S.W.3d 160 (Tex.App.-Corpus Christi 1999)

TODD A. HIXSON, Appellant, v. THE STATE OF TEXAS, Appellee.

No.13-97-288-CR

No.13-97-349-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

July 15, 1999.

On appeal from the 28th District Court of Nueces County, Texas.

Before Chief Justice Seerden and Justices Yanez and Chavez.

OPINION ON REMAND

Opinion on Remand by Chief Justice Seerden

Todd A. Hixson appeals from both the denial of his pretrial application for writ of habeas corpus and from his later conviction for felony driving while intoxicated. By three points of error, Hixson complains that the trial court was required to dismiss his indictment as untimely filed. We originally affirmed the conviction. However, the Texas Court of Criminal Appeals remanded this case for our reconsideration in light of their recent decision in Dobbs v. State, Nos. 329-98 & 330-98 (Tex. Crim. App., October 28, 1998).

The facts of this case are set out in this Court's original opinion. Briefly, Hixson was arrested and released on bail on June 18, 1994, for the felony offense of driving while intoxicated. He was not indicted for this offense until February 3, 1995, when the indictment was filed in the 28th District Court of Nueces County, Texas. Because the terms of court of the 28th District Court run from the first Monday in January to July, and from the first Monday in July to January, Hixson was not timely indicted by the end of the first full term of court (January 2, 1995) after the date of his arrest.

The Texas Code of Criminal Procedure provides:

When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant on or before the last day of the next term of the court which is held after his commitment or admission to bail or on or before the 180th day after the date of commitment or admission to bail, whichever date is later.

TEX. CODE CRIM. PROC. ANN. art. 32.01 (Vernon Supp. 1999).

Texas Code of Criminal Procedure article 28.061, as it existed at the time Hixson was indicted, in addition to requiring that the indictment be set aside, also barred any further prosecution for the underlying offense if the State violated article 32.01.¹ Together, articles 32.01 and 28.061 effectively acquitted the defendant based on an untimely indictment.

We held in our original opinion that the present delay in presentation of the indictment did not violate article 32.01 because the "term of court" applied to the court in which the defendant is "detained in custody or held to bail," and we could not tell from the record brought by Hixson that the time to indict had expired under that court's term of court.

In Dobbs, however, the Texas Court of Criminal Appeals held that the term of court for purposes of article 32.01 is the term of the particular court in which the indictment has been presented. Applying Dobbs in the present case, the Texas Court of Criminal Appeals concluded that Hixson was not timely indicted under article 32.01 reversed our judgment, and has remanded for our reconsideration of the appeal.

The State has argued against dismissal not only based on the argument rejected by the Court of Criminal Appeals, but also because Hixson waived any complaint regarding untimely indictment, and because the dismissal requirement of article 28.061 is unconstitutional. Because the issue of waiver is inextricably tied to that of constitutionality of the statute, we will first discuss constitutionality.

The State argues that the application of article 28.061 to bar any further prosecution following an untimely indictment under article 32.01 violates the separation of powers clause of the Texas Constitution, art. II, 1, which provides for the separation of powers of the three departments of Texas government: Judicial, Legislative, and Executive.

The separation of powers clause may be violated in either of two ways: 1) when one branch of government assumes, or is delegated, to whatever degree, a power that is more properly attached to another branch; or 2) when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers. Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990).

District and county attorneys have been charged with the duty to prosecute criminal cases and the corollary discretion in the preparation of those cases for trial. Therefore, under the separation of powers doctrine, the Legislature may not remove or abridge a district or county attorney's exclusive prosecutorial function, unless authorized by an express constitutional provision. Meshell v. State, 739 S.W.2d 246, 254-55 (Tex. Crim. App. 1987). The Meshell Court, for instance, ruled that the Texas Speedy Trial Act was unconstitutional as an unwarranted encroachment upon a prosecutor's exclusive function without the authority of an express constitutional provision. Id. at 256-57. Specifically, the Meshell Court concluded that the requirements of the Act did not sufficiently allow for consideration of the factors which are generally applied to determine whether a defendant has been deprived of his constitutional right to a speedy trial.²

After Meshell, the State argued in other cases that article 32.01 likewise constitutes an unwarranted encroachment upon prosecutorial discretion at the indictment stage. However, those of our sister courts who have considered the issue have universally held that article 32.01 is constitutional and does not infringe upon prosecutorial discretion so unreasonably as to violate the separation of powers clause. Steinmetz v. State, 968 S.W.2d 427, 429-33 (Tex. App.--Texarkana 1998, no pet. h.); Ex parte Torres, 966 S.W.2d 723, 726-29 (Tex. App.--San Antonio 1998, no pet. h.); Frenzel v. State, 963 S.W.2d 911, 915-16 (Tex. App.--Waco 1998, no pet. h.); Ex parte Barnes, 959 S.W.2d 313 (Tex. App.--Fort Worth 1997, pet. dism'd); Ex parte Mallares, 953 S.W.2d 759 (Tex. App.--Austin 1997, no pet.); State v. Condran, 951 S.W.2d 178 (Tex. App.--Dallas 1997, pet. dism'd); Norton v. State, 918 S.W.2d 25, 28-29 (Tex. App.--Houston [14th Dist.] 1996), writ dism'd, 969 S.W.2d 3 (Tex. Crim. App. 1998).

Article 32.01 is merely a legislative mechanism used to enforce the accused's constitutional right to indictment by a grand jury. TEX. CONST. art. I, 10; Frenzel, 963 S.W.2d at 915. We agree that its timely indictment requirements are far less burdensome than the speedy trial requirements struck down by Meshell, and that article 32.01 provides sufficient safeguards to allow the State to present, and the trial court to consider, circumstances showing good cause for failure to comply. See Norton, 918 S.W.2d at 28-29.

However, the courts of appeals in Texas have split on the constitutionality of the provision of article 28.061 that barred further prosecution following an untimely indictment.

Several courts of appeals have held that article 28.061 is unconstitutional to the extent that the 1987 amendment barred further prosecution based on an untimely indictment. Frenzel, 963 S.W.2d at 915-16; Barnes, 959 S.W.2d at 320; Condran, 951 S.W.2d 190-91. The Condran court states that the application of article 28.061 to bar further prosecution "shifts the focus from releasing the accused from the punitive effects of incarceration or bail to the State's ability to obtain an indictment within a specific time period." Id. at 190. Specifically, Frenzel, Barnes and Condron found that article 28.061 unduly interfered with prosecutorial discretion, citing the wide discrepancies in terms of court across the state, and factors beyond the State's control, such as the inability of the prosecutor to compel the grand jury to act timely. Frenzel, 963 S.W.2d at 915-16; Barnes, 959 S.W.2d at 320; Condran, 951 S.W.2d at 190-91.

Other courts of appeals, however, have upheld the application of the article 28.061 bar to further prosecution as an appropriate enforcement mechanism for untimely indictment, particularly since the good cause provision of article 32.01 serves as a safety valve and mitigates against the harshness of a dismissal with prejudice. Torres, 966 S.W.2d at 726-29; Norton, 918 S.W.2d at 27-29; see also Mallares, 953 S.W.2d at 762 n.4; Nix v. State, 882 S.W.2d 474, 475-76 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd); Nguyen v. State, 882 S.W.2d 471, 472-73 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd) (noting that Meshell struck down as an unconstitutional violation of separation of powers only the dismissal and bar of prosecution based on speedy trial grounds, which had no effect on dismissal and bar for untimely indictment). Specifically, Torres reasons that the combination of 28.061 and 32.01 is no more of an interference than any statute of limitations. Id. at 729.

We agree with Frenzel, Barnes, and Condran that article 28.061's bar to prosecution unnecessarily shifts the focus from releasing the accused to infringing on the State's ability to obtain an indictment within a certain time frame, thus violating the separation of powers clause. Frenzel, 963 S.W.2d at 915; Barnes, 959 S.W.2d at 320; Condran, 951 S.W.2d at 190-91. Thus, we join those courts in holding article 28.061 unconstitutional. The State is not barred from prosecuting Hixson.

We next address the State's final argument that Hixson waived his complaint by failing to raise it prior to his indictment. Not until March 10, 1997, did Hixson complain about the failure to timely indict by his pretrial application for writ of habeas corpus and motion to dismiss.

The history of articles 32.01 and 28.061, and their constitutionality, becomes important with regard to the State's...